Office of the Attorney General
State of Texas

Re: Whether violation of the Board of Polygraph Examiners'
regulations is a penal offense under article 4413(29cc), section
26, V.T.C.S.

Dear Mr. Gonzales:

You have requested our opinion as to whether the violation of
regulations promulgated by the Board of Polygraph Examiners is a
penal offense under section 26 of article 4413(29cc), V.T.C.S.
That provision states:

[a]ny person who violates any provision of this Act . . .
shall be guilty of a misdemeanor . . ..

Section 6(a) of article 4413(29cc) authorizes the Board to

issue regulations consistent with the provisions of this Act
for the administration and enforcement of this Act . . ..

You ask whether a person who violates a Board regulation
forbidding conduct which is not prohibited by the statute itself
may be prosecuted for violating a provision of the Act.

In the present instance, there is little evidence that the
Legislature intended to confer upon the Board the power to define
substantive crimes. If it had attempted to do so, the attempt
would have been invalid. It is well established that article 1,
section 28 of the Texas Constitution prohibits the Legislature
from delegating its authority to create a penal offense. Dockery
v. State, 247 S.W. 508, 509 (Tex. Crim. App. 1923); Ex parte
Leslie, 223 S.W. 227, 229 (Tex. Crim. App. 1920).

In Attorney General Opinion O-872 (1939), this Office held that
the mere violation of a rule of the State Parks Board could not
serve as the predicate for an arrest, unless the act in question
was also made a penal offense by statute. See also Attorney
General Opinions
H-119 (1973);
O-5047 (1943).
In our opinion,
this view is equally applicable to regulations of the Board of
Polygraph Examiners. Accordingly, we believe that the violation
of Board regulations which forbid conduct not prohibited by any
statute is not a penal offense under section 26 of article
4413(29cc).

SUMMARY

The violation of regulations promulgated by the Board of
Ploygraph Examiners, which regulations prohibit conduct not
proscribed by any statute, is not a penal offense under section
26 of article 4413(29cc), V.T.C.S.